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Trademark FAQ’s

 

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Intellectual Property:  
Trademark FAQ’s

What is a Trademark?

A trademark is a word or symbol used by a person or business to identify his goods or services and distinguish them from similar goods and services offered by others. Trademarks identify the goods or services as coming from or being controlled by a single source.

How are trademarks obtained?

Ownership of a trademark is established by being the first to adopt and use the trademark on goods or in advertising services. Ownership of the trademark protects against use of the same or similar trademarks by others under circumstances which are likely to cause confusion, mistake or deception. Some trademark rights are acquired merely by using the mark, and a registration is not required, but there are many reasons why a registration should be obtained.

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How are trademarks protected?

The common law offers some protection to the trademark owner as soon as the trademark is used, but these rights are limited. Full protection for the trademark can be obtained only by filing and obtaining a Federal trademark registration.

What types of words and symbols
are best used as trademarks?

The best trademarks are words or symbols which are not descriptive or suggestive of the goods or services offered under the mark, but are arbitrary or meaningless except in connection with its use as a trademark. Such terms, for example EXXON®, acquire a strong connection with the goods and services and afford the owner broad protection against use by others. There are many types of words and symbols which cannot be registered as trademarks. A trademark attorney can give advice regarding why certain terms cannot or should not be adopted and used as a trademark.

What steps should be taken before adopting a trademark?

A qualified trademark attorney should be consulted. Initially, the attorney can steer the prospective owner away from words and symbols which may be difficult or impossible to protect, and can provide advice on how to choose a word which can develop into a strong trademark. Then, a trademark search is normally performed to determine whether someone else has already begun using the trademark, or has filed an application to register it.

How is notice of trademark rights given?

The familiar ® symbol means that a Federal Trademark Registration has been granted by the United States Patent and Trademark Office. This symbol can only be properly used after the registration has been granted.

What rights does a trademark owner
have in the trademark?

The right of a business to distinguish its product or service from competitors is a valuable asset. The trademark laws permit the owner to stop infringers in order to protect those assets and to prevent confusion and deception of the public. It is necessary only to show likelihood of confusion arising from the infringement - actual confusion need not be shown. Upon proof of infringement, the trademark owner is usually entitled to an injunction preventing further use of the trademark by the infringer and, if damaged by the infringement, damages from the infringer sufficient to compensate the trademark owner for its losses. A specialized form of trademark protection, called “trade dress” can be used to protect non-functional, distinctive product packaging and design under some circumstances.

How do I protect my trademark in a foreign country?

In today's global economy, trademarks are frequently used outside the United States. For this reason, it is important to note that trademark laws are different outside the United States. If a business expects sales under a mark to be significant in a particular country, it is advisable to file an application for registration in that country. Fortunately, qualified trademark attorneys generally have professional relationships with law firms throughout the world that can assist in the foreign registration process in any given country.

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Copyright, W. Thad Adams, III, 2013. All rights reserved. (Revised January 2, 2017)

All the information provided on this web site is of a general nature, and is not intended to address individual circumstances or the needs of any particular person or entity. This information is provided with no guarantee of completeness, accuracy, or timeliness. It is not intended to and does not render legal or other professional services. No one should act upon such information without appropriate advice and a thorough examination of the facts in a particular situation. Thad Adams assumes no liability for reliance on the information contained on this web site and reserves the right to make any change to the content without prior notice. Nothing on this website is intended to be legal advice, and is not legal advice. Nor is this website connected in any way with Adams’ employer, the law firm of Shumaker, Loop & Kendrick, LLP.